Writer: Phuong Nguyen
Pursuant to the law of Vietnam, divorce is a complex procedure. It often requires the settlement of a court for a final decision. There are many matters that spouses should consider such as marriage status, child custody, common properties, common debts, etc. Normally, a spousal consent (consensual divorce) is a best approach for setting a divorce. If the parties cannot have a spousal consent, then they should file a petition to a court for an unilateral divorce case.
Within a limited context, BLawyers Vietnam’s family lawyers would share underneath some experience on divorce procedure between a Vietnamese and a foreigner, in both consensual divorce and unilateral divorce.
1. Consensual divorce
Competent court shall recognize the consensual divorce if a spouse reaches consent about all relevant matters of their divorce. These are common property division, obligations for their common children, child custody, etc.
There are some notes as follows:
a. Competence of court
Competence of court is subject to residing status of spouses and location of common properties, which is inside or outside Vietnam. Accordingly, a provincial-level court or a district-level court could be competent.
b. Requested documents
Normally, both spouses must have a request letter. It states: (i) date of the request; (ii) name of the competent court; (iii) information of both parties; (iv) details of the request, including purposes, reasons and basis supporting for their request. The husband and wife must sign together on the letter.
Then, they need to add relevant documents supporting their agreements on the consent of divorce, property division and child custody.
c. Court procedure
The time period for a consensual divorce is 01-03 months from the date the court accepts the documents in Item 1.b above. Within that period, the in-charge judge will organize a mediation to reunite the couple.
If the mediation is successful and the spouses agreed to live together again, the in-charge judge shall issue a decision to terminate their divorce request. The judge only issues a decision to recognize the consensual divorce and the parties’ agreement if the following conditions are met:
- The spouses engage voluntarily divorce;
- The spouses reached agreements on dividing common properties (or not) and obligations for their common children; and
- Their agreements must ensure the legitimate rights of the wife and children.
The decision to recognize the consent of a divorce will take legal effect immediately without being appealed.
Of note, the court normally requests the foreign spouse to have a Vietnamese interpreter to present their opinions before court.
d. Pros and cons
As said, consent divorce is the best approach for spouses’ divorce. It saves time and fees/ expenses from both parties. Then, with good emotional control, both parties could maintain their relationship and/or for taking care of their children together.
However, the competent court only recognizes divorce if spouses reached an agreement in all mentioned issues of their marriage.
2. Unilateral divorce
There are some notes on a unilateral divorce as follows:
a. Competence of court
The court’s competence is as same as for the procedure of a consensual divorce. However, a spouse should file a petition dossier to court where other spouse resides. In some cases, the prevailing law of Vietnam allows the petitioner to select a court for settlement.
b. Requested documents
A spouse must prepare a petition dossier for unilateral divorce including statutory contents by law. (S)he needs to submit all documents and evidence showing that his/her rights over the divorce and demands for court’s consideration.
Of note, (s)he should legalize/ translate all documents in foreign languages into Vietnamese.
c. Court procedure
After considering the submitted petition dossier, the court shall send a notice to the petitioner about its acceptance on the divorce case. Practically, it could take around 09-12 months for courts to settle an unilateral divorce.
Before opening hearings for resolving divorce case, the court could hold meetings for disclosing evidence and mediation. In case of unsuccessful mediation between spouses, the court will settle the following maters of the divorce:
- Marriage status;
- Common properties and common debts; and
- Common children.
Per our experience, unilateral divorce procedure between a foreigner and a Vietnamese is complicated. One of reasons are the involvement of child/ children under 3 years old and both parties want to request the direct custody. In other cases, as the law do not allow foreign spouse to have titles over real estates (i.e. land lots and houses) and the Vietnamese one has titles.
Like other kinds of dispute, the parties have the right to appeal the first instance judgment/ decision of the court within 15 days from the announce date. Then, when the final judgment/ decision becomes valid, a party has the right to request an enforcement if not receiving the support from other side.
3. Hiring a family/ divorce lawyer for a divorce procedure between a foreigner and a Vietnamese
In case spouses can reach a consensual divorce, everything seems a lot simpler. However, if they must bring the case to courts, asking support from a family lawyer or divorce lawyer is considerable. An experienced lawyer can help:
- Listening facts/ demands from clients, reviewing documents/ evidence;
- Advising clients on their current situation;
- Preparing petition dossiers, agreements, explanations, requesting letters, etc. to submit to the competent court;
- Supporting on negotiation with other side and his/her attorney, if any; and
- Working with the in-charge court and keep your case going step-by-step.
Before starting a case with lawyers, you should meet them to present clearly your facts and demands. Then, asking questions to clarify how lawyers help your case, including their scope of work, service fee (and out-of-pocket fees), timeline. A good communicating with lawyers during your divorce case is key of successful support.
In conclusion, a consent divorce is the best approach that spouses could consider for terminating their marriage relationship. However, no matter what approach of divorce, spouses should comply all statutory procedures for courts to officially recognize. In addition, seeking support from an experienced family lawyer in divorce case is noteworthy.
If you have any questions on this matter, please revert to us at firstname.lastname@example.org. We are happy to hear and support.